Chapter 47:

The plaintiffs are public utilities providing telecommunications services in New Hampshire. The plaintiffs commenced separate actions for abatement of real estate taxes against sixteen municipalities. The plaintiffs disputed the defendants' treatment of its communications equipment as real estate, thereby challenging their authority to tax its equipment. The communications equipment at issue involves two basic categories: (1) distribution plant, which includes telephone poles, wires, and underground conduits; and (2) central office equipment, consisting of frames, switches, and other power equipment.

The plaintiffs submitted affidavits setting forth the following facts. All of the plaintiffs' poles, wires, and underground conduits located in the municipalities are placed either on public rights of way or on private property owned by third parties. Approximately 90 percent of the poles are located on public rights of way pursuant to licenses issued by the state or the municipalities. The remaining 10 percent of the poles are placed on private property either by consent of the property owner or pursuant to an easement. The poles, wires, and underground conduits are installed in a manner that permits and facilitates their removal and relocation. Consequently, removal of that equipment is neither complicated nor time consuming, and does not harm the underlying land or change its usefulness. The plaintiffs remove and relocate their poles, wires, and underground conduits at the request of the state or the applicable private landowner or municipality. In obtaining the licenses, consents, or easements for their poles, wires, and underground conduits, the plaintiffs insist on maintaining ownership of that equipment and refuse any requests to make the equipment a permanent part of the realty. The plaintiffs' central office equipment, most of which is located in buildings owned by the plaintiffs, is both portable and designed to permit removal and relocation. The plaintiffs' practice and policy is to move pieces of central office equipment among buildings in response to changes in technology or system use. Although certain frames are bolted to the buildings, their removal is achieved without affecting the usefulness of the buildings or the frames themselves. When the plaintiffs ultimately vacate a building used as a central office, they remove all of their equipment and merely transfer the building "as a shell." The vacated building, though devoid of central office equipment, retains utility for other commercial or professional uses. The defendants did not dispute the specific facts set forth by the plaintiffs.

(a) What are the arguments that the property is not real property and therefore not subject to taxation by the municipalities?

(b) What are the arguments that the property is real property and can be taxed by the municipalities?

(c) Who is correct? Explain

Chapter 48

On June 30, 2009, Martin Hendrickson and Solveig Hendrickson were married, and on January 3, 2010, a home previously owned by Martin was conveyed to them as joint tenants and not as tenants in common. Solveig Hendrickson paid no part of the consideration for the premises. On August 3, 2017, Martin Hendrickson duly executed a Declaration of Election to Sever Survivorship of Joint Tenancy by which he endeavored to preserve an interest in the premises for Ruth Halbert, his daughter by a previous marriage. On the same day, he executed his last will and testament, by the terms of which he directed that his wife, Solveig Hendrickson, receive the minimum amount to which she was entitled under the laws of the State of Minnesota. Martin Hendrickson died with a valid will on October 9, 2017.

(a) What are the arguments that the joint ownership was severed by Martin Hendrickson's declaration thus creating a tenancy in common?

(b) What are the arguments that the joint tenancy was not severed by Martin Hendrickson's declaration and thus the property passed to Solveig Hendrickson by survivorship upon Martin Hendrickson's death?

(c) Which argument should prevail? Explain.

Chapter 49

Playtime Theaters and Sea-First Properties purchased two theaters in Renton, Washington, with the intention of exhibiting adult films. About the same time, they filed suit seeking injunctive relief and a declaratory judgment that the First and Fourteenth Amendments were violated by a city of Renton ordinance that prohibits adult motion picture theaters from locating within one thousand feet of any residential zone, single- or multiple-family dwelling, church, park, or school.

(a) What are the arguments that the city has the right to enforce such an ordinance?

(b) What are the arguments that the city does not have the right to enforce such an ordinance?

(c) What result? Explain.

Chapter 50

Upon George Welch's death, he was survived by his third wife, Dorothy Welch, and his daughter by his first marriage, Patricia Fisher. At the time George and Dorothy were married, George was in very poor health and he relied on Dorothy to care for him. George was suicidal and an alcoholic and suffered from severe depression. During the eight months George and Dorothy were married, George became isolated from his family and his health deteriorated. Prior to his death, George transferred the bulk of his assets to Dorothy. Dorothy assisted in the transfer of George's assets and often completed checks and other papers for George's signature. Although George and Dorothy had executed a prenuptial agreement, during the month preceding his death George made a new will that named Dorothy as his sole beneficiary. Patricia had been the sole beneficiary of his prior will. Through the transfers of assets and the new will, Dorothy received $570,000.

(a) What are the arguments that Patricia is entitled to the $570,000?

(b) What are the arguments that Dorothy is entitled to the $570,000?

(c) Who should prevail? Why?

Short Answer Questions (please remember, I am grading effort):

1. Grace Peterson, a spinster then aged seventy-four, asked Chester Gustafson, a Minneapolis attorney, to draw a will for her. Gustafson, who had also probated Peterson's sister's estate, drew this first will and six subsequent wills and codicils free of charge because he claimed that she had no money to pay for his services. Over the five-year period during which Gustafson redrew Peterson's will, an increasing amount of property was devised to Gustafson's children, until, finally, the seventh will so devised Peterson's entire estate. Peterson, however, hardly knew the children except from several chance encounters ten years before. She died five years later, without ever having changed the seventh will, and Gustafson, who was named as executor, now seeks to have the will admitted to probate. Discuss whether the seventh will should be probated.

2. Robert and Stanley held legal title of record to adjacent tracts of land, each consisting of a number of five acres. Stanley fenced his five acres in 1988, placing his east fence 15 feet onto Robert's property. Thereafter, he was in possession of this 15-foot strip of land and kept it fenced and cultivated continuously until he sold his tract of land to Nathan on March 1, 1997. Nathan took possession under deed from Stanley, and continued possession and cultivation of the fifteen-foot strip that was on Robert's land until May 27, 2016, when Robert, having on several occasions strenuously objected to Nathan's possession, brought suit against Nathan for trespass. Explain whether Nathan has gained title by adverse possession.

3. Hines stored her furniture, including a grand piano, in Arnett's warehouse. Needing more space, Arnett stored Hines's piano in Butler's warehouse next door. As a result of a fire, which occurred without any fault of Arnett or Butler, both warehouses and their contents were destroyed. Is Arnett liable to Hines for the value of her piano and furniture? Explain